IN THE CASE OF:	  

		BOARD DATE:	    16 May 2013 

		DOCKET NUMBER:  AR20120019318 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart.

2.  He states that everyday there was so much action at the beginning of the Tet Offensive Campaign.  This is why the report to his commander was never submitted when he was injured by a land mine.  

3.  He provides a self-authored statement, DA Form 2658 (Health Record - Abstract of Service), letters from the Department of Veterans Affairs (VA), letter from the Social Security Administration, two VA Rating Decisions, Standard Form (SF) 600 (Chronological Record of Medical Care), and DA Form 20 (Enlisted Qualification Record).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was inducted into the Army of the United States on 5 September 1967.  

3.  His DA Form 20 shows in:

* item 31 (Foreign Service) he served in Vietnam from 7 February 1968 through 2 February 1969
* item 38 (Record of Assignments) no record of being hospitalized in a patient status at any time
* item 40 (Wounds) no entries
* item 41 (Awards and Decorations) no listing of award of the Purple Heart

4.  His service record does not contain orders which show he was awarded the Purple Heart.  The Vietnam Casualty Roster does not list his name.

5.  He was honorably released from active duty on 4 September 1969.  His DD Form 214 does not show award of the Purple Heart.

6.  He provided a self-authored statement in which he described the events involving his injury in Vietnam.  It was his rotating duty to drive their mine sweeping troops with another individual, who was the driver.  He was the door man and they dropped off the troops at the beginning of the rubber plantation on 19 April 1968.  When they turned around to return to the fire base, they hit a mine on the side of their 5-ton dump truck.  All he saw at that time was black smoke.  He doesn't remember how he got out of the truck, but he remembered seeing the driver sitting down and holding his leg.  His x-rays showed his back (spine) is growing crooked and he's in a lot of pain every day.  

7.  He provided the following documents which indicate:

	a.  SF 600, he was treated on 21 April 1968.  He was in a truck which hit a mine and he has right lower lumbar discomfort.  Pain in lower back, riding in dump truck irritates and brought on soreness.  This document does not indicate he was wounded or injured as a result of hostile action.

	b.  letter, dated 11 June 2009, from the Social Security Administration, a favorable decision for disability and disability insurance benefits was granted.  He was also found disabled due to post-traumatic stress disorder (PTSD).

	c.  two VA Rating Decisions, dated 22 October 2009 and 21 April 2010, he was granted service-connection for PTSD (50%), right leg radiculopathy (10%), back strain with degenerative disc disease (formerly low back strain) (20%), bilateral hearing loss (0%).  He was also granted entitlement to individual unemployability, and basic eligibility to Dependents' Educational Assistance was established from 22 September 2009.

	d.  VA letter, dated 26 April 2010, his service-connection compensation received on 5 August 2009, was increased.

   e.  two VA letters, dated 10 March 2011 and 2 March 2012, he was granted service-connection at an 80 percent (%) disability rating.

8.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders for the Purple Heart pertaining to the applicant.

9.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  Army Regulation 600-8-22 also states that when contemplating an award of the Purple Heart the key issue commanders must take into consideration is the degree to which the enemy caused the injury.  

10.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical documentation indicates he was treated for pain in his lower back.  He stated his truck hit a mine when he and another Soldier were returned to the fire base.  

2.  His service record is void of evidence which indicates he sustained this injury as the result of hostile action.  His name is not listed on the Vietnam Casualty Roster and a review of ADCARS failed to reveal any orders for award of the Purple Heart pertaining to the applicant.
3.  In accordance with the regulation, in order to award the Purple Heart, it is necessary to establish that a Soldier was wounded as a result of enemy action, the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.  

4.  The available evidence shows the VA granted the applicant service connection for PTSD, right leg radiculopathy, back strain with degenerative disc disease (formerly low back strain), and bilateral hearing loss at a 80% combined disability rating.  However, the VA rating decisions are insufficient to show the applicant's injuries were incurred as a result of hostile action.

5.  In the absence of evidence that shows he was wounded or injured as a result of hostile action, there is an insufficient basis upon which to award of the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20120019318





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ABCMR Record of Proceedings (cont)                                         AR20120019318



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